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Ministers given too much power by EU Withdrawal Bill, peers report

2 February 2018

A further report from a House of Lords committee has criticised the European Union (Withdrawal) Bill for failing to provide sufficient parliamentary scrutiny of ministers' powers to make delegated legislation.

The Delegated Powers & Regulatory Reform Committee focuses on clause 7 of the bill, which allows ministers to make laws by regulation if they deem it "appropriate" to remedy any deficiency when converting EU law into UK law. The committee considers the "appropriateness" test to be subjective and that it should be replaced by an objective text of "necessity". If the proposed new laws cannot meet that test, they should be introduced as primary legislation and subject to full parliamentary scrutiny.

Its report goes on to highlight concerns with the provision in sched 4 that would allow "tax-like charges" to be introduced by a minister or public authority without any parliamentary scrutiny. The committee states that such charges are taxes and are therefore a matter for Parliament, as established by article 4 of the Bill of Rights 1688.

Further, any proposals to increase these charges should be subject to the full scrutiny of the affirmative resolution procedure, rather than the less robust negative procedure.

The committee reasserts its previous recommendation that it should be Parliament, not Government, that has the final say over whether the level of scrutiny applied to a statutory instrument should be affirmative (requiring the express consent of Parliament) or negative (where it becomes law unless opposed in Parliament). Both the Commons and Lords should have sifting committees that would have 10 sitting days in which they could demand that any SI be subjected to the affirmative procedure. If the committee of either House made that recommendation, the affirmative procedure would apply. This mechanism would strike the appropriate balance between the "scrutiny requirements of Parliament and the business needs of Government".

Committee chairman Lord Blencathra commented: "We feel strongly that ministers should not be allowed to make laws by regulation rather than primary legislation just because they deem it appropriate. That is too vague. The ‘appropriateness test’ should be replaced by a test of necessity. A minister should be able to show the changes being made by a statutory instrument laid under clause 7 are necessary to meet a deficiency in retained EU law."

He added: "Our report will inform the House of Lords ahead of committee and report stage of the bill and I am sure the Government will want to reflect on what we have said before we get to those stages."

Click here to access the report.

  • A further report from the Lords' EU Regulatory Subcommittee has concluded that while Brexit should not be taken as a reason to throw away the shared fundamental principles of the international; approach to competition policy, it does present the UK with "an opportunity to address shortcomings of the current regime, particularly in relation to state aid where (working with the devolved administrations) the UK will have to create a domestic framework from scratch". Click here to access the report.


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